Law Commons^™

Together And Apart In An Online Classroom, Laura A. Heymann

Popular Media

No abstract provided.

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss, Katherine Mims Crocker, Brandon Hasbrouk

Briefs

No abstract provided.

Punishing Pill Mill Doctors: Sentencing Disparities In The Opioid Epidemic, Adam M. Gershowitz

Faculty Publications

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids. The evidence against both doctors was overwhelming. They each sold millions of opioid pills. Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests. Instead, the doctors simply handed the patients opioids in exchange for cash. To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions. Both doctors made millions of dollars profiting off …

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.

This …

We Must Restore Americans' Faith In Our Federal Bench, A. Benjamin Spencer

Popular Media

No abstract provided.

The Brief (Edition #3, November 2020), William & Mary Law School

The Brief

No abstract provided.

The Importance Of Transparent Elections, Rebecca Green

Popular Media

No abstract provided.

Recounts And Ballot Challenges In The 2020 Presidential Election: Legal Expert Provides Insights, Bruce Brumberg, Rebecca Green

Popular Media

No abstract provided.

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick

Faculty Publications

Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, ""civic republican," "individual," and 'fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article …

Criminal Trespass And Computer Crime, Laurent Sacharoff

William & Mary Law Review

The Computer Fraud and Abuse Act (CFAA) criminalizes the simple act of trespass upon a computer—intentional access without authorization. The law sweeps too broadly, but the courts and scholars seeking to fix it look in the wrong place. They uniformly focus on the term “without authorization” when instead they should focus on the statute’s mens rea. On a conceptual level, courts and scholars understand that the CFAA is a criminal law, of course, but fail to interpret it comprehensively as one.

This Article begins the first sustained treatment of the CFAA as a criminal law, with a full elaboration of …

Tribalism And Democracy, Seth Davis

William & Mary Law Review

Americans have long talked about “tribalism” as a way of talking about their democracy. In recent years, for example, commentators have pointed to “political tribalism” as what ails American democracy. According to this commentary, tribalism is incompatible with democracy. Some commentators have cited Indian Tribes as evidence to support this incompatibility thesis, and the thesis has surfaced within federal Indian law and policy in various guises up to the present day with disastrous consequences for Indian Tribes. Yet much of the talk about tribalism and democracy—within federal Indian law, and also without it—has had little to do with actual tribes. …

Abandoning Copyright, Dave Fagundes, Aaron Perzanowski

William & Mary Law Review

For nearly two hundred years, U.S. copyright law has assumed that owners may voluntarily abandon their rights in a work. But scholars have largely ignored copyright abandonment, and case law on the subject is fragmented and inconsistent. As a result, abandonment remains poorly theorized, owners can avail themselves of no reliable mechanism to abandon their works, and the practice remains rare. This Article seeks to bring copyright abandonment out of the shadows, showing that it is a doctrine rich in conceptual, normative, and practical significance. Unlike abandonment of real and chattel property, which imposes significant public costs in exchange for …

Data Of The Dead: A Proposal For Protecting Posthumous Data Privacy, Kate C. Ashley

William & Mary Law Review

No abstract provided.

Force-Feeding Pretrial Detainees: A Constitutional Violation, Bryn L. Clegg

William & Mary Law Review

No abstract provided.

Free Speech, Rational Deliberation, And Some Truths About Lies, Alan K. Chen

William & Mary Law Review

Could “fake news” have First Amendment value? This claim would seem to be almost frivolous given the potential for fake news to undermine two core functions of the freedom of speech—promoting democracy and facilitating the search for “truth,” as well as the corollary that to be valuable, speech must promote rational deliberation. Some would therefore claim that fake news should be classified as “no value” speech falling outside of the First Amendment’s reach. This Article argues somewhat counterintuitively that fake news has value because speech doctrine should not be focused exclusively on the promotion of rational deliberation, but should also …

The Brief (Edition #2, October 2020), William & Mary Law School

The Brief

No abstract provided.

Those Who Can Vote Are Duty-Bound To Do So, A. Benjamin Spencer

Popular Media

No abstract provided.

Meet William & Mary's New Deans, Claire De Lisle

2020–present: A. Benjamin Spencer

No abstract provided.

Argument Analysis: Justices Spar Over Stare Decisis, Originalism, Text And What Counts As A Fourth Amendment “Seizure”, Jeffrey Bellin

Popular Media

No abstract provided.

Case Preview: When Is A Fleeing Suspect “Seized”?, Jeffrey Bellin

Popular Media

The Fourth Amendment prohibits unreasonable “searches” and “seizures.” On Wednesday, the Supreme Court is scheduled to hear oral argument in Torres v. Madrid, a case that will provide important guidance on what constitutes a Fourth Amendment seizure. Here’s a rundown of the case starting with the relevant facts and procedural history, followed by a discussion of the legal issues and finally a couple of things to watch for at the argument.

Dana Drozina Ll.M. '21: Reflections On The Fall 2020 Semester, Dana Drozina

Law School Personal Reflections on COVID-19

No abstract provided.

Professor Jennifer S. Stevenson: Reflections On The Fall 2020 Semester, Jennifer S. Stevenson

Law School Personal Reflections on COVID-19

No abstract provided.

Professor Jeffrey Bellin: Reflections On The Fall 2020 Semester, Jeffrey Bellin

Law School Personal Reflections on COVID-19

No abstract provided.

Samy W. Abdallah '21: Reflections On The Fall 2020 Semester, Samy W. Abdallah

Law School Personal Reflections on COVID-19

No abstract provided.

Julian Miller '23: Reflections On The Fall 2020 Semester, Julian Miller

Law School Personal Reflections on COVID-19

No abstract provided.

Professor Stacy Kern-Scheerer: Reflections On The Fall 2020 Semester, Stacy Kern-Scheerer

Law School Personal Reflections on COVID-19

No abstract provided.

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Faculty Publications

No abstract provided.

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

Faculty Publications

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …